ALJDEC decisions subject to certification as final

2021A-01775-CHC-ROC · Registrar of Contractors · 2021-09-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lynn Reynolds,

COMPLAINANT

Immediate Pool Builders LLC

License No. ROC 273890,

RESPONDENT

No. 2021A-01775-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 8, 2021

APPEARANCES: Complainant Lynn Reynolds appeared on her own behalf. Steve O’Hanlon appeared on behalf of Respondent Immediate Pool Builders LLC. Investigator Steve Nelson appeared via Google Meet on behalf of the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

Immediate Pool Builders LLC (Respondent) is the holder of License No. 273890 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 20, 2020, Lynn Reynolds (Complainant) signed a contract with Respondent for construction of a pool and surrounding deck in the backyard. The contract amount was for $35,006.08.

On or about April 23, 2021, the Registrar received a Complaint containing eight items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Mike Wiskow. The jobsite inspection was performed on May 11, 2021.

Investigator Wiskow then issued a written directive on or about May 12, 2021 to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on June 11, 2021.

. . .

You are hereby directed to remedy the following violations by the appropriate means:

Compliance Item: 1 - Excavation team hit house.

Investigator’s Observation: There is a piece of trim missing from the house. Trim should be repaired by a properly licensed contractor.

Contractor should make repairs by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Excavation team hit cabinet.

Investigator’s Observation: Proper accommodations for damaged cabinet should be made by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - Excavation team hit block wall across from cabinet.

Investigator’s Observation: There was no evidence that the excavator hit the wall across from the cabinet. There was no substantial evidence that a dirt pile moved the wall in the back corner. There is evidence that someone tried to repair both block walls. Currently neither block wall that was repaired fall within workmanship standards. The back corner wall is out of plumb with unsightly grout lines. The wall across from the cabinet is not level (ununiform grout lines) and has unsightly grout lines.

Both walls should be repaired by a properly licensed contractor.

Contractor should make repairs by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - Pool is not built to contract. It's too deep.

Investigator’s Observation: The pool is 4'-1" at the shallow end, 5'-3" in the middle and 4'-4 at the remaining end. These measurements are deeper than what the contract specified. Contractor should repair by appropriate means.

Governing Rule: Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

Compliance Item: 6 - Contract was for cool deck. Contractor installed travertine to minimize slope.

Investigator’s Observation: There is currently travertine installed where the contract calls for concrete with cool deck. Concrete with cool deck should be installed in place of the travertine.

Contractor should make repairs by appropriate means.

(All errors contained in the original)

On June 15, 2021, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); and A.R.S. § 32-1154(A)(22).

On or about June 24, 2021, Respondent e-mailed an Answer to the Registrar.

On or about August 5, 2021, a Notice of Hearing was issued setting a hearing on September 8, 2021 at the Office of Administrative Hearings, an independent state agency.

Investigator Nelson testified as to the Registrar’s involvement and the above timeline.

Investigator Nelson testified that a compliance inspection was not performed as the parties agreed that only Directive Item 3 had been corrected.

Investigator Nelson testified that as to the pool depth, the accepted depth variance is plus or minus 3 inches. Investigator Nelson testified the contract called for the pool depths to be 3’8” at the shallow end, 5’ at the middle and 4’ at the other end. Investigator Nelson testified that during the inspection, the measurements were 4’1” at the shallow end, 5’3” in the middle and 4’4” at the other end, thereby out of the range of the acceptable depth variance.

Investigator Nelson also testified that he believed the timeframe to complete the Directive was reasonable.

Complainant testified on her own behalf as well as her husband, Ron Reynolds, and offered 17 exhibits into the record.

Complainant testified that the 3’8” depth was important to her as she performed her exercises in the pool and the pool as it is now, comes up too high for her to complete the same.

Complainant also testified that she was looking to Respondent’s expertise as to how to properly construct the pool to meet her needs. The pool was 3’8” against the wall but was not conducive for exercising, as Complainant testified that she believed the pool would be uniformly 3’8” everywhere until it went to 5’ deep. Complainant further testified that Respondent never informed her of the severity of the slope between depths.

Mr. Reynolds testified that as to Directive items 1 and 2, the excavator damaged the house trim and the cabinet. The excavator offered $20.00 in cash as well as a $200.00 Home Depot gift card as compensation for the same, but Mr. Reynolds refused as he did not believe this was enough to cover the damage.

Mr. Reynolds also testified that travertine was installed instead of cool decking. While the travertine minimized the errors with the slope, Mr. Reynolds testified that it was not what the contract called for and not what him and his wife wanted due to the maintenance of the same. Further, Mr. Reynolds testified that the travertine was cracked in places.

Steve O’Hanlon testified on behalf of Respondent.

Mr. O’Hanlon testified that this project was a “darn nightmare” as his secretary, Stephanie, was running his company without his knowledge.

Mr. O’Hanlon testified that generally it was hard to find sub-contractors, and the project went bad from the beginning with the hiring of Stephanie’s friend to perform the excavation.

Mr. O’Hanlon testified that he missed and never checked the elevation and tried to make it right.

As to the damage to the trim and cabinet, Mr. O’Hanlon testified that he believed those issues were taken care of by the $220.00 given by the excavator and did not know that the Reynolds’ did not accept the same.

As to the installation of the travertine, Mr. O’Hanlon testified that he did his best to help with the improper slope and also testified that some of the travertine may have had scratches due to the tiles being on a palette together.

Mr. O’Hanlon testified that the pool was 3’8” deep as per the contract against the wall. He testified further that to achieve the depths that the Reynolds’ were looking for, the slope in the pool would be too steep and that the pool had to gradually slope downward.

Finally, Mr. O’Hanlon testified that while he admitted some mistakes occurred, he tried his best to make it right and stated that due to the boom in the construction industry it was hard to find good licensed sub-contractors.

Administrative notice is taken of Respondent’s prior License record on September 20, 2021. Such prior License record reflected that Respondent’s License No. 273890 was first issued on July 6, 2011. There was one open Complaint, namely the present matter.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Mr. O’Hanlon did not dispute that there were issues with the work performed and the damage caused to the trim, cabinet and wall. Therefore, Complainant established that Respondent was in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

As to the depth of the pool and the installation with the travertine, the Tribunal admittedly is perplexed as to why the Registrar did not choose to cite Respondent for violation of A.R.S. § 32-1154(A)(2)(a), when the description in the Directive used such language. That being said however, as to the depth issues in Directive item 4, because Mr. O’Hanlon admitted in his testimony that he did not check the elevation after the excavation, the Tribunal determines that this was not acting in a professional and workmanlike manner in violation of A.A.C. R4-9-108(A), to ensure that the pool depth was correct.

As to the travertine, it was clear from the contract that this was not to be installed. Respondent installed the same to try to minimize the slope, this arguably could be seen as Mr. O’Hanlon’s attempt to solve the problem professionally and in a workmanlike manner. Therefore, the Tribunal finds there is no violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A) for the installation of the travertine.

The evidence established and Mr. O’Hanlon admitted that he failed to complete the corrective work as to the damage to the trim and cabinet following the Directive being issued. Further, there were no efforts undertaken by Respondent to correct the pool depth issues. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 273890 for a period of seven days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

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In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 30 days from the date of that certification.

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-137160-45720000Done this day, September 20, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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